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Fred Robert Scalf, Iii v. John F. Salazar

June 30, 2011

FRED ROBERT SCALF, III,
PETITIONER,
v.
JOHN F. SALAZAR, WARDEN
RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (2) DENYING CERTIFICATE OF APPEALABILITY

On August 3, 2009, Fred Robert Scalf, III ("Petitioner"), a state prisoner proceeding pro se filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner seeks the abrogation of his guilty pleas to two counts of sexual misconduct with a minor. (Doc. No. 1, at 2.) Specifically, Petitioner contends that (1) the San Diego County Superior Court erred in excluding certain unauthenticated letters in collateral review of his habeas petition; (2) that Petitioner's trial counsel provided ineffective assistance in advising him to plead guilty; and (3) that the trial court erred in failing to inform him that he was presumptively ineligible for probation. (Doc. No. 1, at 13-15, 16-26, 27-38.) On May 25, 2011, the magistrate judge issued a Report and Recommendation that the Court deny Petitioner's habeas petition. (Doc. No. 16.) Petitioner did not file objections by the June 20, 2011 deadline. (See Doc. No. 16, at 13.) For the reasons set forth below, the Court DENIES Petitioner's habeas petition, and adopts the Report and Recommendation.

I. Background

On March 8, 2006, acting on the advice of counsel, Petitioner entered a guilty plea to two counts of lewd and lascivious conduct with a minor under the age of 14. (Lodg. No. 10, at 1.) Specifically, Petitioner admitted to having "touched [his stepdaughter] under [her] clothing in the genital area, the breasts, and on her buttocks." (Lodg. No. 6, at 2.) During Petitioner's plea hearing, the following colloquy, between Petitioner and the trial court, ensued:

Q. I see you have reached an agreement with the Office of the District Attorney. You are going to plead guilty to two charges, Counts One and Three. You are going to admit the allegation on each of those counts. [¶] In exchange for that plea, the District Attorney's Office then will dismiss all of the other charges. [¶] The issue of sentence will be decided by the Court. All options are open. The District Attorney's Office is free to argue for whatever they think is a fair sentence, including a prison term. I will consider all of the options, and I know that your lawyer is going to undertake an effort on your behalf to convince me that a probationary sentence will be appropriate and not a state prison sentence. I have made no commitment other than to give full consideration to all options. [¶] I trust that is consistent with what you have been told.

A. Yes, sir, it is.

Q. Anybody promise you anything else?

A. No, sir. (Lodg. 2, RT 2:2-24 (emphasis added).)

Q. Now, the maximum penalty for these two felonies would be the result of a consecutive sentence. If the maximum penalty were to be imposed, it would be ten years in the California state prison . . . . [¶] You are aware of that?

A. Yes, sir, I am. . . . Q. This is a case where it's presumed that you will be sentenced to state prison. The Court needs to make some specific findings in order to consider probation, and one of the findings is that a -- the probationary sentence would be in the best interest of the victim. [¶] Do you understand that?

A. Yes, sir, I do. (Lodg. 2, RT 3:19-4:12 (emphasis added).)

On August 11, 2006, following entry of Petitioner's guilty pleas, the trial court sentenced Petitioner to prison for eight years, finding that probation would not be in the best interest of the victim. (Lodg. No. 2, at 19-21; Lodg. No. 10, at 1.) Petitioner appealed, claiming that the trialcourt abused its discretion by sentencing him to prison rather than placing him on probation. (Lodg. No. 3.) The Court of Appeal affirmed the judgment. (Lodg. No. 6.)

On May 21, 2008, Petitioner filed an unsuccessful habeas petition with the San Diego County Superior Court, alleging essentially the same claims stated here. (See Lodg. No. 7.) In denying his habeas petition, the court declined to consider certain unauthenticated letters proffered in support of Petitioner's ineffective assistance of counsel ("IAC") claim. (Lodg. No. 8, at 3-4.) Petitioner thereafter filed habeas petitions in the Court of Appeal, (Lodg. No. 10), and the California Supreme ...


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